INTRODUCTION. On November 6, 2017, Dai Thao, a candidate for mayor of Saint Paul at the time,

STATE OF MINNESOTA COUNTY OF RAMSEY DISTRICT COURT SECOND JUDICIAL DISTRICT State of Minnesota, v. Dai Thao, Court File No. 62-CR-18-927 Memorandum of Law in Support of Defendant s Motion to Dismiss or For A Verdict of Acquittal Defendant. INTRODUCTION On November 6, 2017, Dai Thao, a candidate for mayor of Saint Paul at the time, helped an elderly and disabled woman exercise her constitutional right to vote. She could not see well. She needed language assistance. There was no Hmong interpreter at the polling station, and election judges did not offer one. She asked Mr. Thao to help her, and Mr. Thao helped someone in need. He assisted only one elderly woman. He helped the woman register to vote by interpreting for the election judges and assisting her to fill out her registration form in front of election judges. Election judges handed the woman her ballot with Mr. Thao standing next to her waiting to go to the booth. Everything was done in full view of election judges. Election judges knew who Dai Thao was and that he was a candidate. Even so, the election judges said nothing and made no effort to stop Mr. Thao from assisting the elderly woman until after she had voted. The State of Minnesota now seeks to prosecute Mr. Thao for a crime of assisting someone vote. (He is potentially the first and only person ever prosecuted for this crime.) The State s prosecution fails for five reasons. First, the prosecution violates the federal Voting Rights Act and the Fourteenth Amendment of the United States Constitution,

which explicitly permits and protects Mr. Thao s assistance of the elderly woman s effort to vote. Second, as applied to these facts, the State s prosecution of Mr. Thao under Minn. Stat. 204C.15 violates Mr. Thao s First Amendment rights, and is, therefore, unenforceable. Third, even if Minn. Stat. 204C.15 is constitutionally valid under these facts, the State has failed to adequately plead and prove that Mr. Thao knowingly took actions that were unauthorized. Fourth, the State took numerous affirmative acts that appeared to approve of and permit the precise conduct for which it now seeks to prosecute Mr. Thao. Fifth, Mr. Thao did not mismark the ballot, but marked the ballot as he was directed by the voter. Indeed, based on the undisputed facts, and given the State s own acknowledged complicity, the State s prosecution of Mr. Thao is not only unconstitutional and legally deficient, it is patently unfair. The charges against Mr. Thao should be dismissed. STIPULATED FACTS In November of 2017, Mr. Thao was a Saint Paul city councilman and a candidate for mayor who appeared on the ballot as a candidate for mayor. Stip. Facts at 2, 15, Ex. A (sample ballot). Candidates for office were provided with a 2016 Campaign Manual by the State of Minnesota (the Campaign Manual ), which set forth numerous legal requirements and prohibitions for candidates. Stip. Facts at 17, Ex. C. The Campaign Manual detailed numerous legal limits on candidates conduct while running for office, including conduct in and near polling stations. Among other things, the Campaign Manual set forth provisions of Minn. Stat. 204C.06, which purports to govern Conduct In And Near Polling Places. Ex. C at 60 61. As set forth in this provision, the Campaign Manual 2

specifically advised candidates that Subdivision 2 permitted individuals in polling places for the purposes of assisting a disabled voter or a voter who in unable to read English. Id. at 60. The Campaign Manual failed to limit this permission in any way. In fact, the Campaign Manual did not even reference Minn. Stat. 204C.15, which prohibits candidates in an election from assisting voters to vote (and is the basis for the State s prosecution in this case). See generally Ex. C. In prior elections, before running for city council, Mr. Thao exercised this statutory permission to assist others vote. Stip. Facts at 15. As a part of the 2017 general election, in-person absentee voting was available at six locations in the City of Saint Paul, including the Martin Luther Recreational Center, from October 31, 2017 through November 6, 2017. Stip. Facts at 1, 5. On November 6, 2017, Mr. Thao approached a group of elderly men and women near his home on Blair Avenue and encouraged them to vote. Id. at 3. One member of this group was X.Y. (an individual known to both parties), who at the time was 63 years old and eligible to vote. Id. at 3, 4. Mr. Thao informed the group that he was a candidate for mayor, inquired whether anyone in the group needed assistance in voting, and offered to help members of the group if they needed assistance. Id. at 3. X.Y. indicated that she had not voted, but wanted to vote before she left on international travel later that day. Id. X.Y. lived with her son, who was a neighbor near Mr. Thao. Id. Mr. Thao agreed to drive X.Y. to the near-by Martin Luther Recreational Center polling station. Id. at 5. 3

X.Y. s native language is Hmong, and she did not speak the English language. Id. at 4. 1 On the way to the polling station, she advised Dai Thao that she needed assistance in voting. Id. When Mr. Thao and X.Y. arrived at the polling station, there was no Hmong interpreter. Id. at 6. Election judges did not offer to obtain an interpreter for X.Y. Id. at 8. Mr. Thao assisted X.Y. with registering to vote by filling out the registration form for her using information from her driver s license and interpreting for her and election judges. Id. at 7. Mr. Thao worked with X.Y. and the election judges for approximately 20 minutes during the registration process. Id. While Mr. Thao was assisting X.Y. and election judges with the registration process, election judges did not indicate that he could not assist X.Y. by interpreting for her or fill out forms for her. Id. at 7 8. After X.Y. registered to vote, and while Mr. Thao was physically standing with X.Y., an election judge gave X.Y. a ballot to vote. Id. at 9. The election judge did not tell Mr. Thao he could not assist X.Y. Id. Mr. Thao then physically entered the voting booth with X.Y. to interpret the ballot. Id. at 10. The ballot and instructions were in English only. Id. at 6, Ex. A. X.Y. advised Dai Thao that she had difficulty filling out the ballot as she was visually impaired and was without her glasses. See Stip. Facts at 10. X.Y. asked Dai Thao to provide her physical assistance with filling out the small circles on the ballot, which he did. Id. X.Y. later told investigators that Mr. Thao read all of the mayoral and school 1 The United States Census Bureau estimates that in 2015, of more than 19,000 votingage residents of St. Paul who identified as Hmong, 28.2% (5,374 individuals) identified as speaking English not well or not at all. For those individuals who were 65 years of age or older, 80.5% (853 individuals) identified as speaking English not well or not at all. (These statistics can be found using the U.S. Census Bureau s American FactFinder tool, located at: https://factfinder.census.gov/faces/nav/jsf/pages/index.xhtml.) 4

board candidate names on the ballot to her. Id. Mr. Thao did not direct X.Y. how to vote and filled out the ballot as X.Y. directed. Id. At all times during the registration and voting process, Mr. Thao was visible to numerous election judges, some of whom were aware that he was a mayoral candidate and had entered a voting booth with a voter. Id. at 11. However, only after X.Y. finished voting did an election judge approach Mr. Thao and inform him that he could not assist voters because he was a candidate on the ballot. Id. at 13 14. The Minnesota Election Judge Manual ( Election Judge Manual ) instructs election judges to intervene and ask anyone not authorized to be present in a polling place or voting booth to leave. Id. 12, Ex. B at 30. When finally informed by the election judge that he could not assist voters, Mr. Thao responded, Oh, I didn t know, and indicated he was helping X.Y. at her request. Id. at 14. Mr. Thao contends that he did not know there was anything wrong with his conduct until the election judge said something as he was leaving the polling station. Id. at 18. Saint Paul and Ramsey County election officials have received no additional reports that Dai Thao physically assisted any other voter during the 2017 election. Id. at 16. THE CHARGES AND RELEVANT STATUTORY PROVISIONS Based on the conduct described above, the State charged Mr. Thao with three offenses. In Count I, the State charges Mr. Thao with a gross misdemeanor for marking a ballot without lawful authorization. The statute reads in relevant part, An election judge or other individual who marks the ballot of any voter, except as authorized by law and as directed by the voter,... is guilty of a gross misdemeanor. Minn. Stat. 204C.16. 5

In Count II, the State charges Mr. Thao with a petty misdemeanor for approaching within six feet of a voting booth without lawful authorization. The statute reads in relevant part: an individual may remain inside the polling place during voting hours only while,... assisting a disabled voter or a voter who is unable to read English. During voting hours no one except individuals receiving, marking, or depositing ballots shall approach within six feet of a voting booth, ballot counter, or electronic voting equipment, unless lawfully authorized to do so by an election judge.... Minn. Stat. 204C.06, subd. 2(a). In Count III, the State charges Mr. Thao with a petty misdemeanor for unlawfully assisting a voter in voting while he was a candidate for election. Minnesota Stat. 204C.15 recognizes that voters are permitted to obtain the assistance of any individual the voter chooses, but also purports to exclude certain persons from serving as assistants, including a candidate for election. Minn. Stat. 204C.15, subd. 1. It is undisputed that the conduct at issue assisting a vote by interpreting for her and assisting her is lawful for the vast majority of citizens. It is not conduct that is generally unauthorized or prohibited. In Counts I, II and III, the State contends that Mr. Thao was unauthorized to assist X.Y because of his status as a candidate (the conduct ostensibly proscribed by Minn. Stat. 204C.15). I. Pretrial Issues ARGUMENT A. The United States Voting Rights Act and the U.S. Constitution Protect Thao s Efforts to Provide Assistance and Preclude the State s Efforts to Impede Voting. The United States Voting Rights Act expressly protects Dai Thao s conduct in this case and his effort to assist a woman exercise her constitutional right to vote. 6

Accordingly, the State s prosecution in this case would violate the Voting Rights Act, which preempts any conflicting state law. In passing the Voting Rights Act, Congress explicitly found that through the use of various practices and procedures, citizens of language minorities have been effectively excluded from participation in the electoral process. 52 U.S.C. 10503(a). The Congress declares that, in order to enforce the guarantees of the fourteenth and fifteenth amendments to the United States Constitution, it is necessary to eliminate such discrimination by prohibiting these practices, and by prescribing other remedial devices. Id. The purpose of the Voting Rights Act is to prevent discrimination in the exercise of the electoral franchise.... League of United Latin Am. Citizens v. Perry, 548 U.S. 399, 433 34 (2006). The risk of voting discrimination to Hmong voters (and others) in St. Paul, who cannot speak or read English, is very real. The United States Census Bureau estimates that in 2015, of more than 19,000 voting-age residents of St. Paul who identified as Hmong, 28.2% (5,374 individuals) identified as speaking English not well or not at all. See U.S. Census Bureau s American FactFinder tool (https://factfinder.census.gov/faces/nav/jsf/pages/index.xhtml.) For those individuals who were 65 years of age or older, 80.5% (853 individuals) identified as speaking English not well or not at all. Id. Based on its findings and the desire to overcome the challenges of voter discrimination, Congress expressly prescribed the following as one of the remedies to counter voter discrimination: Any voter who requires assistance to vote by reason of blindness, disability, or inability to read or write may be given assistance by a person of the voter s 7

choice, other than the voter s employer or agent of that employer or officer or agent of the voter s union. 52 U.S.C. 10508. The Senate Judiciary Committee (the SJC ) explained that this provision was designed to protect such individuals from discrimination at the polls and from being unduly influenced or manipulated. S. Rep. 97-417, 62, 1982 U.S.C.C.A.N. 177, 240. To limit the risks of discrimination against voters in these specified groups and avoid denial or infringement of their right to vote, the Committee has concluded that they must be permitted to have the assistance of a person of their own choice. The Committee concluded that this is the only way to assure meaningful voting assistance and to avoid possible intimidation or manipulation of the voter. To do otherwise would deny these voters the same opportunity to vote enjoyed by all citizens. S. Rep. 97-417, 1982 U.S.C.C.A.N. at 241. The SJC went on to explain that state provisions would be preempted where they unduly burden the right recognized in this section, with that determination being a practical one dependent upon the facts. S. Rep. 97-417, 1982 U.S.C.C.A.N. at 241. For instance, the SJC said that a state s procedure could not deny the assistance at some stages of the voting process during which assistance was needed.... Id. The State s prosecution of Mr. Thao in this case is an improper attempt to limit the full panoply of remedies provided in the Voting Rights Act. In instances where state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress, such as here, the United States Supreme Court has held that state law is preempted. California v. ARC Am. Corp., 490 U.S. 93, 101 (1989) (citation omitted). The State cannot enforce a criminal statute that is preempted. See State v. Flores, 188 P.3d 706, 710 11 (Az. Ct. App. 2008) ( Thus, states have the power to prosecute crimes based on acts which might also violate federal law, unless preempted by 8

the Supremacy Clause.... (citation omitted)); Totemoff v. State, 905 P.2d 954, 958 (Alaska 1995) ( A state is free to enforce its civil or criminal laws on federal land within its boundaries unless... the state s laws are preempted by federal law. ). As applied in this case, Minn. Stat. 204C.15, subd. 1 is preempted by the VRA and rendered unenforceable because it criminalizes conduct expressly allowed by the VRA. The prohibition on candidates set forth in Minn. Stat. 204C.15, and the prosecution in this case, intrudes on the allowance mandated by the VRA that permits a voter to pick anyone to assist that voter other than a voter s employer or an agent of the voter s union. See 52 U.S.C. 10508. Thus, as applied in this case, Minnesota is attempting to restrict conduct expressly allowed by the Voting Rights Act. Such a constraint on federal law by the State cannot be tolerated. If this restriction amounts to an obstacle to the accomplishment and execution of the full purposes and objectives of the VRA, Minnesota s statute is preempted and unenforceable. See ARC Am. Corp., 490 U.S. at 101; Katzenbach v. Morgan, 384 U.S. 641, 646 (1966) (holding that the VRA was constitutional and thus, pursuant to the Supremacy Clause of the United States Constitution, a New York literacy requirement related to voting was preempted and rendered unenforceable). If Mr. Thao were prohibited from assisting X.Y. with marking her ballot, X.Y. would have been denied a meaningful opportunity to vote due to her inability to read English and her poor vision. The ballot was in English only, a language X.Y. could not speak or read. See Stip. Facts, Ex. A. There was no Hmong interpreter at the polling place and no election judge advised X.Y. if one could be made available. Stip. Facts at 8. In short, Mr. Thao was X.Y. s sole known and available resource to assist her in 9

understanding and completing her ballot, thereby exercising her constitutional right to vote. Attempts by other states to limit non-english speaking voters right to choose their assistant have been rejected. For instance, Texas enacted a statute that effectively limited non-english speaking voters right to the assistant of their choice to the act of voting itself (i.e., assistance provided in the presence of the voter s ballot ). See OCA- Greater Houston v. Texas, 867 F.3d 604, 607 08 (5th Cir. 2017). Outside the ballot box, these voters could rely on interpreters for things like registering to vote, but the interpreters had to be registered voters in the county where the voter needing assistance resided. Id. at 608. Texas argued that since its statutory scheme provided voters with the same assistance in the ballot box as that afforded by the VRA, the limitations on interpreters outside the ballot box was permissible. See id. at 614. The Fifth Circuit rejected this argument, pointing to the broad definition of to vote in the VRA, and held that the protections and rights afforded under the federal law applied before, during, and after the actual act of marking a ballot. See id. at 614 15. It should go without saying that a state cannot restrict this federally guaranteed right [52 U.S.C. 10508] by enacting a statute tracking its language, then defining terms more restrictively than as federally defined. Id. at 615. The court concluded that the Texas statute was preempted by the VRA. See id. at 607, 615. Here, Minnesota has similarly enacted a statute that largely tracks the language of the VRA, but goes on to prohibit an entire category of persons, candidates for elections, from providing voters with assistance. Compare Minn. Stat. 204C.15, subd. 1 with 52 U.S.C. 10508. Just as the Texas statute was impermissibly restrictive, so too is the 10

Minnesota statute. On the facts of this case, enforcement of Minn. Stat. 204C.15, subd. 1 would violate the rights afforded by 52 U.S.C. 10508. This would plainly frustrate the purpose and objective of the VRA and, accordingly, the application of Minnesota s statute to these facts is preempted and unenforceable. In another case, a county board of elections was accused of an ongoing campaign of discriminatory practices that included failing to provide bilingual interpreters and election materials (despite a significant number non-english speaking voters in the area) and barring voters from having bilingual friends and family members assist them with voting. See United States v. Berks Cty., Pennsylvania, 277 F. Supp. 2d 570, 573 77 (E.D. Pa. 2003). The court held: When Defendants deny Spanish-speaking voters in Reading the right to bring their assistor of choice into the voting booth, voters feel uncomfortable with the process, do not understand the ballot, do not know how to operate the voting machine, and cannot cast a meaningful vote, in violation of [52 U.S.C. 10508]. Id. at 580. The court went on to issue a permanent injunction and required the county board of elections to allow voters to be assisted by an individual of their choosing, within the limitations of the VRA. Id. at 584. Moreover, the court directed that the county board of elections could not construe the state s voting assistance statute to limit a voter s choice of assistor.... Id. As previously described, all three charges against Mr. Thao hinge on the State s contention that Minn. Stat. 204C.15, subd. 1 s prohibition against candidates assisting voters is enforceable. Under the circumstances, the statute amounts to an improper obstacle and intrusion on a federally guaranteed right. Therefore, the state statute is preempted and unenforceable, and the charges against Mr. Thao should be dismissed. 11

B. The State s Prosecution Violates Thao s First Amendment Rights. As applied to the stipulated facts, the State s criminal prosecution of Mr. Thao amounts to a violation of his First Amendment right to free speech and therefore the charges against him should be dismissed. The First Amendment prohibits laws that, in relevant part, abridg[e] the freedom of speech.... U.S. Const. amend. I. The right to free speech covers more than just oral statements, protecting symbolic expression and conduct as well. See Texas v. Johnson, 491 U.S. 397, 404 (1989). Here, by assisting X.Y., Mr. Thao was expressing his belief that those like her, who could not read or speak English and who was visually impaired, are entitled to the assistant of their choosing when exercising their fundamental right to vote. Challenges to a law that allegedly violates the First Amendment can be facial or as-applied. See Minnesota Majority v. Mansky, 708 F.3d 1051, 1056-59 (8th Cir. 2013) (hereinafter, Minnesota Majority I). An as-applied challenge consists of a challenge to the statute s application only as-applied to the party before the court. If an as-applied challenge is successful, the statute may not be applied to the challenger, but is otherwise enforceable. Id. at 1059 (citations omitted). Mr. Thao asserts an as applied challenge against Minn. Stat. 204C.15. The right to free speech can be limited, but the constitutional validity of such limitations depends in part on the forum where the speech occurs. See id. at 1056. This analysis considers when the Government s interest in limiting the use of its property to its intended purpose outweighs the interest of those wishing to use the property for other purposes. Id. (quoting Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 800 (1985)). Polling places are considered nonpublic forums. Id. at 1057. A 12

restriction on speech in a nonpublic forum... is permissible if it is viewpoint neutral and reasonable in light of the purpose which the forum at issue serves. Id. (citation omitted). As applied in this case, Minn. Stat. 204C.15 amounts to a restriction on Mr. Thao s right to freedom of speech and expression in the polling place. Mr. Thao admits that this restriction is viewpoint neutral, as it prohibits all candidates for election from assisting disabled voters, regardless of the viewpoint they hold. However, the restriction is not reasonable or rationally related to any purpose of the polling place, especially in light of the circumstances. The purpose of the State s polling place regulations is to facilitate voting and guard against the two evils of voter intimidation and election fraud. Minnesota Majority v. Mansky, No. 10-CV-4401 (JNE/SER), 2015 WL 13636675, at *8 (D. Minn. Mar. 23, 2015) (hereinafter, Minnesota Majority III), aff d, 849 F.3d 749 (8th Cir. 2017). Thus, [t]he state has a legitimate interest in maintain[ing] peace, order, and decorum in the polling place, as well as a compelling interest in protecting voters from confusion and undue influence and preserving the integrity of its election process. Id. (quoting Minnesota Majority I, 708 F.3d at 1057) (alterations original). The question then is whether the restriction on speech reasonably and rationally serves the State s interests in the polling place. See Minnesota Majority v. Mansky, 62 F. Supp. 3d 870, 876 77 (D. Minn. 2014) (hereinafter, Minnesota Majority II), aff d, 849 F.3d 749 (8th Cir. 2017); Minnesota Majority v. Mansky, 849 F.3d 749, 752 53 (8th Cir. 2017) (hereinafter, 13

Minnesota Majority IV), cert. granted sub nom. Minnesota Voters All. v. Mansky, 138 S. Ct. 446 (2017). 2 There is no evidence that the assistance Mr. Thao provided X.Y. in marking her ballot in anyway jeopardized the decorum or integrity of the polling place, confused X.Y., or influenced her vote. Rather, the opposite is true. Far from disrupting the polling place, Mr. Thao worked diligently for nearly 20 minutes with election judges and X.Y. to register her to vote. Stip. Facts at 7. After X.Y. received her ballot, she specifically requested Mr. Thao s assistance in marking it due to her language and visual impairments. Id. at 10. Mr. Thao read X.Y. the names of all the mayoral and school board candidates on the ballot and did not direct or suggest how X.Y. should vote, thereby avoiding any undue influence or confusion. See id. Mr. Thao then marked X.Y. s ballot as she directed. Id. Rather than jeopardize any interest the State has in the polling place, Mr. Thao s speech and expression assisted the State in accomplishing what is presumably its ultimate objective in these circumstances allowing eligible, but disabled, elderly Hmong voters like X.Y. to exercise their constitutional right to vote. Enforcing Minn. Stat. 204C.15 against Mr. Thao criminalizes his right to free speech and expression. This enforcement is in no way reasonably or rationally related to any interest the State has in the polling place. The State certainly has no evidence that enforcement under the circumstances advances any of these interests. Instead, the only evidence is that Mr. Thao s speech and expression did not disrupt the integrity of the polling place and did not influence or confuse X.Y. Moreover, Mr. Thao s speech and 2 The Minnesota Majority case decisions regarding facial overbreadth are currently on appeal and pending before the Supreme Court of the United States. See S. Ct. Case No. 16-1435. 14

expression were integral to allowing X.Y. to exercise her right to vote. Thus, enforcement of Minn. Stat. 204C.15 amounts to an unconstitutional violation of Mr. Thao s First Amendment rights and the charges against him should be dismissed. II. Trial Issues Even if the State s prosecution in this case is constitutionally permissible, the State has failed to adduce evidence establishing Mr. Thao s criminal culpability. A. The State Has Not Sufficiently Alleged or Proven The Requisite Scienter. The conduct at issue in this case assisting a disabled voter exercise her constitutional right to vote is generally legal. This generally lawful and permitted conduct is ostensibly made illegal only by a state statute (Minn. Stat. 204C.15), which purports to provide that a candidate in the election is not authorized to assist a voter. Under these circumstances, the State must prove that Mr. Thao acted with the requisite scienter. Specifically, the State must prove beyond a reasonable doubt that Mr. Thao knew providing assistance to X.Y. was unauthorized. The State has not alleged, and the evidence does not prove, that Mr. Thao knew that his effort to assist X.Y. was unauthorized. Instead, the evidence reveals that Mr. Thao reasonably believed that he was authorized to assist X.Y. Therefore, the charges against Mr. Thao must be dismissed. 1. The crimes charged against Thao require a mens rea element. The statutes at issue are silent as to what mens rea is required for a conviction. Yet, courts have long held that legislative silence on the issue of mens rea does not suggest that the legislature intended to dispense with the common-law rule requiring 15

mens rea. United States v. Staples, 511 U.S. 600, 605 06 (1994). In part, this is because of a long-held common law understanding: The contention that an injury can amount to a crime only when inflicted by intention is no provisional or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil. Morissette v. United States, 342 U.S. 246, 250 (1952) (footnote omitted). Similarly, Minnesota courts have recognized that [m]ens rea is the element of a crime that requires the defendant know the facts that make his conduct illegal. State v. Ndikum, 815 N.W.2d 816, 818 (Minn. 2012) (quoting that Staples, 511 U.S. at 605). The existence of a mens rea element in criminal statutes is the rule rather than the exception and offenses that lack a mens rea requirement are generally disfavored. Id.; see Elonis v. United States, 135 S. Ct. 2001, 2009 (2015). [G]reat care is taken to avoid interpreting statutes as eliminating mens rea where doing so criminalizes a broad range of what would otherwise be innocent conduct. In re Welfare of C.R.M., 611 N.W.2d 802, 809 (Minn. 2000); see Staples, 511 U.S. at 610 ( [W]e have taken to avoid construing a statute to dispense with mens rea where doing so would criminalize a broad range of apparently innocent conduct. (citation omitted)). Even where a criminal statute does not carry an explicit mens rea element, this silence is not enough to assume the legislature intended to dispense with a conventional mens rea element. Ndikum, 815 N.W.2d at 818 (quoting Staples, 511 U.S. at 605). Instead, some positive indication of legislative intent is required to dispense with mens rea. Id. at 818 19. Thus, the Minnesota Supreme Court has held that numerous criminal statutes require a mens rea element to be proven despite 16

the fact that they contain no express intent or knowledge requirement. See id. at 819 (collecting cases). None of the statutes charged by the State contain a positive indication that the legislature intended to dispense with the mens rea requirement. Therefore, according to the jurisprudence relied upon by the Minnesota Supreme Court, a knowledge requirement exists in each of the Counts against Mr. Thao. Specifically, the required mens rea is that Mr. Thao knew his conduct in assisting X.Y. while he was a candidate in the election was unauthorized. See Liparota v. United States, 471 U.S. 419, 425 34 (1985) (holding that to convict a defendant of using or possessing food stamps in a manner not authorized by statute, the Government must prove that the defendant knew that his acquisition or possession of food stamps was in a manner unauthorized by statute or regulations ); see also Staples, 511 U.S. at 610 19 (holding that to be convicted of possessing a machinegun, a defendant had to know the characteristics of the weapon that brought it within the statute s criminal prohibition). Accordingly, to convict Mr. Thao, the State must prove beyond a reasonable doubt that Mr. Thao knew his conduct was unauthorized or illegal. 2. The State has not alleged, let alone proven beyond a reasonable doubt, that Thao acted with the requisite knowledge. There is no evidence that Mr. Thao knew he was unauthorized to assist X.Y. or had any reason to believe that doing so was illegal. When Mr. Thao was finally approached by an election judge on November 6, 2017 and told he could not assist voters as a candidate in the election, Mr. Thao responded, Oh, I didn t know. Id. at 14. He went on to tell the election judge he was unaware of the fact that as a candidate he could not assist voters or act as an interpreter. Id. at 18. 17

The other evidence corroborates these contemporaneous and spontaneous assertions and reflects that Mr. Thao was reasonably and understandably unaware of any prohibition on candidates assisting voters. Before he became a politician, Mr. Thao assisted others with voting as is perfectly legal for the vast majority of people in Minnesota to do. See Stip. Facts at 15. Consistent with Mr. Thao s experience, the Campaign Manual provided by the State to Mr. Thao and other candidates expressly advised candidates that individuals were permitted to assist voters who were disabled or needed assistance with language. Id. at 17, Ex. C. at 60 61 (presenting Minn. Stat. 204C.06, subd. 2). The Campaign Manual was silent about any limitation on the ability of candidates to assist voters. Id. Thus, far from educating Mr. Thao that as a candidate he could not assist voters, the State s Campaign Manual expressly advised candidates that individuals are permitted to assist voters. Moreover, Mr. Thao assisted X.Y. with registering to vote by interpreting for her and filling out the registration form in front of the election judges, who said nothing to advise Mr. Thao that he could not assist X.Y. Stip. Facts at 7. An election judge even gave X.Y. a ballot with Mr. Thao standing next to her waiting to go to the voting booth, but said nothing about whether Mr. Thao could assist X.Y. in the voting booth. Id. at 9. This conduct by State election officials was reasonably understood as approval of Mr. Thao s conduct. Based on these stipulated facts, the evidence proves beyond a reasonable doubt that Mr. Thao believed his conduct was lawful and authorized and cannot reasonably be argued to suggest the contrary. 18

B. Thao Reasonably Relied On the State s Affirmative Approval of His Assistance to X.Y. and Therefore May Not Be Prosecuted For that Conduct. Far from helping Mr. Thao understand that as a candidate he could not assist X.Y., State officials took affirmative steps to approve of Mr. Thao s conduct. A defendant may defend against a criminal charge by claiming that he acted in reliance on official actions or pronouncements regarding his conduct. State v. Shane, 883 N.W.2d 606, 611 (Minn. Ct. App. 2016) (citation omitted). Where a government official advises a person that conduct is legal, subsequently prosecuting that person for relying on that advice violates due process. Id. at 612. However, [t]he government s failure to inform a person of a law affecting them is not sufficient to invoke this defense. Id. Instead, [t]he government must make an affirmative statement or action. Id. Although the State was not required to inform Mr. Thao that, as a candidate in the election, he was unauthorized to assist X.Y. with marking her ballot (Count I), stand within six feet of the voting booth (Count II), or assist X.Y. in voting (Count III), it could not mislead him on these issues and subsequently prosecute him. Unfortunately, this is exactly what happened. As described before, the State s own Campaign Manual expressly advised candidates that individuals can assist voters and made no mention of any limitation on candidates. See Stip. Facts, Ex. C. Thus, the State s Campaign Manual advised candidates that providing assistance was permitted. The conduct of the State s election judges also constitutes approval of Mr. Thao s conduct at the polling place. Mr. Thao and X.Y. were observed by multiple election judges during the entire time they were within the polling place. See Stip. Facts at 7, 19

9, 11. Mr. Thao worked closely with some of the election judges, interpreting for them and X.Y. and assisting X.Y. fill out her registration form. See id. at 7. Mr. Thao was with X.Y. when the election judge presented X.Y. with her ballot. Id. at 9. Election judges observed Mr. Thao enter the voting booth with X.Y., some of whom recognized Mr. Thao as a mayoral candidate See id. at 9, 11. Yet none of the election judges made any effort to inform Mr. Thao he could not assist a voter, even though election judges are affirmatively charged with doing so. Id. at 11 13, Ex. B at 30. By failing to do so, the conduct of the election judges was reasonably understood as approval. In total, the conduct by the State and its officials amounted to an affirmation that all of Mr. Thao s assistance to X.Y. was legal. The State provided Mr. Thao with confusing information on the subject of the assistance that could be provided to voters, actively engaged with the assistance Mr. Thao provided while registering X.Y. to vote, noted Mr. Thao was present when X.Y. was given her ballot, and then simply watched as he entered the voting booth with X.Y., making no effort to stop him until after X.Y. cast her ballot. Under the circumstances, Mr. Thao reasonably relied on this affirmative conduct by the State in believing that he was permitted to assist X.Y. as he did. Thus, the State s prosecution of Mr. Thao amounts to a violation of due process and the charges against him must be dismissed. C. Thao Marked The Ballot As Directed And Did Not Mismark The Ballot As Defined By Statute Count I alleges that Mr. Thao marked the ballot of a voter without lawful authorization in violation of Minn. Stat. 204C.16. Yet, Section 204C.16, a gross misdemeanor, contemplates a narrower scope of prohibited conduct. The State must prove all elements. As set forth in the statute, the State must allege and prove both that 20

the mark was not authorized by law and that it was other than as directed by a voter. Minn. Stat. 204C.16. Here, the stipulated evidence proves that the ballot was marked as directed by X.Y. Accordingly, the State has not proven its case. CONCLUSION For all of the foregoing reasons, the State s prosecution of Dai Thao for assisting an elderly and disabled woman exercise her constitutional right to vote should be dismissed or, in the alternative, Mr. Thao should be found not guilty. Dated: June 8, 2018 /s/ Joseph T. Dixon Joseph T. Dixon (#0283903) Alexander D. Chiquoine (#0396420) FREDRIKSON & BYRON, P.A. 200 South Sixth Street, Suite 4000 Minneapolis, MN 55402-1425 Telephone: 612.492.7000 Facsimile: 612.492.7077 jdixon@fredlaw.com achiquoine@fredlaw.com Attorneys for Defendant 63830311.5 21